[§207.5.] Housing development. The department is authorized to develop and construct single-family and multifamily units for housing native Hawaiians. The method of disposition, including rentals, as well as the terms, conditions, covenants, and restrictions as to the use and occupancy of such single-family and multifamily units shall be prescribed by rules adopted by the department pursuant to chapter 91. [L 1997, c 196, §1]
Even though a declaration of covenants, conditions, and restrictions was invalidly incorporated by the department of Hawaiian home lands into the homestead leases for a homestead housing project and was not enforceable by the department because the department failed to engage in rulemaking as required under this section, the project's residents agreed to be bound by the declaration through their sales contracts with the developer and, therefore, the declaration remained enforceable by the homeowners' association pursuant to chapter 421J, which governs planned community associations. 137 H. 71 (App.), 365 P.3d 1000 (2015).
The general authorization provided to the department of Hawaiian home lands "to develop and construct" housing units under this section is most naturally and conventionally interpreted to encompass the department's development and construction of housing units through a project developer agreement. 137 H. 71 (App.), 365 P.3d 1000 (2015).
The plain language of this section establishes that it applies to a project that consists of eighty-five single-family and multifamily units for housing native Hawaiians and the department of Hawaiian home lands was required to promulgate rules before incorporating a declaration of covenants, conditions, and restrictions as a condition of the homestead leases issued by the department to the project's residents. 137 H. 71 (App.), 365 P.3d 1000 (2015).